C-165/91

* Original language: French. 1 — Judgment in Case 151/87 Bakker v Rijksdienst voor Werkne- merspensioenen [1988] ECR 2009. 2 — I, 1.

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OPINION OF MR DARMON — CASE C-165/91

6. Consequently, until that date, no diffi­ that the AOW granted entitlement to a pen­ culty arose in that respect for a migrant sion of 100% of minimum salary only to worker. The increase in pension that he married men, with full insurance, while received in the Netherlands did not affect his unmarried men and women could receive rights to a Belgian pension at the household only 70% and married women had no per­ rate. sonal entitlement to benefits.

7. This is no longer so since the amendment of the AOW by the Law of 28 March 1985, enacted in implementation of Council Direc­ 10. In order to make that legislation con­ tive 79/7/EEC of 19 December 1978 on the form to the directive, the Netherlands con­ progressive implementation of the principle sidered that anyone, man or woman, who of equal treatment for men and women in 3 had been insured under the AOW should, matters of social security (hereinafter called from the age of 65, have a personal entitle­ 'the directive'). ment to benefit.

8. As the Netherlands Government points out, the AOW sets up an insurance scheme for the population at large based, not as in 4 many countries, including Belgium, on the 11. That was the case so far as Mr and Mrs pursuit of an occupational activity, but on van Munster were concerned. Born in 1920, the length of the beneficiary's residence in Simon van Munster was employed in Bel­ the Netherlands between his 15th and 65th gium from 1974 to 1981 and for almost birthdays. 41 years in the Netherlands.

— to assess whether a provision of national law which attaches different conse­ quences to the payment of a pension to an inactive spouse, depending on whether it is made in the form of an increased 14. Although the total amount of the two pension for the active spouse or in the Netherlands pensions did not exceed that of form of a separate pension awarded to the benefit previously received by Mr van the other spouse, is compatible with the Munster, the conversion into a personal pen­ EEC Treaty, and more especially with the sion for the wife of the supplement pre­ principles of freedom of movement for viously paid on that account to the husband workers and of equal treatment for men had the effect, in Belgium of causing the hus­ and women; band to lose the benefit of the household rate, which was replaced by the single rate. The result was a reduction of 15% in the amount of the income that Mr van Munster derived from his Belgian pension.

— to determine whether there exists, with regard to Community law, any justifica­ tion for treating the pension awarded to the inactive spouse differently from that awarded in the form of an increase in 15. Mr van Munster — understandably — pension for a dependent spouse. did not take kindly to such a reduction in his income. He contested before the court the decision adopted in his case by the RVP and it is in the context of the appeal against the decision given at first instance by the Arbeidsrechtbank (Labour Court), Antwerp, that the Arbeidshof (Higher Labour Court), Antwerp, requests the Court to give a pre­ liminary ruling on two questions, the text of which is reproduced in the Report for the 5 Hearing.

— the calculation of benefits including increases due in respect of a spouse and 21. As regards the interests at issue in this for dependants and the conditions gov­ case, it should be pointed out that those erning the duration and retention of en­ articles prescribe the following: titlement to benefits',

— Article 3(c): the abolition, as between Member States, of obstacles to freedom of movement for persons; Article 7(1), as the Commission rightly observes, allows Member States to exclude from the scope of application of the direc­ tive: — Article 48: freedom of movement for workers within the Community (para­ graph (1)), the abolition of any discrimi­ nation based on nationality between workers of the Member States as regards employment, remuneration and other '(...) conditions of work (paragraph (2)), the

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VAN MUNSTER v RIJKSDIENST VOOR PENSIOENEN

right to move freely within the territory of harmonization but has confined itself at of Member States to accept offers of this stage to drawing up only coordinating employment actually made and to stay rules. there for the purpose of employment (paragraph (3)(a), (b) and (c));

24. The Court has allowed such diversity, but has been concerned to point out that it — Article 51: the adoption of such measures may operate only on condition that the pro­ in the field of social security as are neces­ tection of freedom of movement for workers sary to provide freedom of movement for within the Community is respected. workers, in particular making arrange­ ments to secure for migrant workers and their dependants the aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several 25. That requirement applies first and fore­ countries. most to the Community legislature.

'coordination, not the harmonization, of the legislation of the Member States', It concluded:

Article 51

'It follows that the Community rules on social security introduced pursuant to Arti­ cle 51 of the Treaty must refrain from adding to the disparities which already stem from 'leaves in being differences between the the absence of harmonization of national leg­ 10 Member States' social security systems and, islation.' consequently, in the rights of persons work­ ing in the Member States. It follows that substantive and procedural differences between the social security systems of indi­ vidual Member States, and hence in the rights of persons working in the Member 8 States, are unaffected by the Treaty.' 30. It is because it 'added' to the disparities stemming from national legislation and therefore impeded freedom of movement for workers that the Court declared Article 73(2) of Regulation No 1408/71 to be 29. The Court, however, immediately quali­ invalid. fied that statement as follows:

'The objective of securing free movement for 31. The case-law of the Court in this con­ workers within the Community (...) will (...) nection is extremely clear. The Court be imperilled and made more difficult to describes freedom of movement for migrant realize if unnecessary differences in the social

9 — Paragraph 21. 8 — Paragraph 20. 10 — Ibid.

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'The conditions governing the right or obli­ 11 — Judgment in Case 254/84 De Jong v Sociale Verzekerings- gation to become a member of a social secu­ bank [1986] ECR 671, paragraph 14. rity system are a matter to be determined by 12 — Ibid., paragraph 15. the legislation of each Member State, pro­ 13 — Judgment in Case C-349/87 Paraschi vLandesversicherungs- anstalt Württemburg [1991] ECR I-4501. vided always that there is no discrimination

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OPINION OF MR DARMON — CASE C-I65/91

in that connection between the nationals of discourage Community workers from exer­ the host State and those of other Member cising their right to freedom of movement States', and would therefore constitute an obstacle to 16 that freedom.'

and that: 38. Legislation such as that in question, the Court considered:

'Consequently, Community law does not prevent the national legislature from amend­ ing the conditions for the grant of an inval­ idity pension, even if it makes them stricter, 'Even if it applies, formally, to every Com­ provided that the conditions adopted do not munity worker and can thus lead to a pro­ give rise to any overt or disguised discrimi­ longation of his reference period, neverthe­ 15 nation as between Community workers.' less, in so far as it makes no provision for any possibility of prolongation where events or circumstances corresponding to those which enable the period to be prolonged occur in another Member State, it is liable to have a much greater adverse effect on migrant workers since they above all, partic­ 37. The Court pointed out that: ularly in case of sickness or unemployment, 17 tend to return to their countries of origin',

39. From those considerations the Court concluded that Articles 48(2) and 51 of the Treaty do not preclude: 41. Is it not necessary, however, to pass on from fact to law and inquire whether, over and above the 'events and circumstances', a national social security system must also, in certain cases, take into account the corre­ sponding rules of another Member State, in 'National legislation which makes the condi­ order not to impede freedom of movement tions for the grant of an invalidity pension for migrant workers? stricter (...). However, those articles preclude such legislation where it permits the refer­ ence period to be prolonged, subject to con­ ditions, but does not provide for the possi­ bility of a prolongation where events or circumstances corresponding to the events or circumstances which would enable a prolon­ 42. The following example, which enlarges gation to be granted occur in another Mem­ 19 the scope of the case in point, demonstrates ber State.' the relevance of the question.

will deprive him on his retirement of the lands systems, taken separately, or whether 'household rate' from which his counterpart the amendment of the AOW, a system of who has always worked in State A, will insurance for the population at large and not benefit? only for employed persons, was necessary or optional in character, from the point of view of Directive 79/7, there can be no escaping the conclusion that the reduction in Mr van Munster's Belgian pension is not a result of the AOW, which could not govern that pen­ 44. The answer to this question is obviously sion, but of the effect produced by the Bel­ in the affirmative. There is here an obstacle, gian rules when the Netherlands legislation which no less obviously, even in the absence was amended. of any formal provision, affects migrant workers in comparison with non-migrant workers, and therefore nationals of other Member States in comparison with the 20 nationals of the Member State in question.

47. Here we arrive at the heart of the prob­ lem. Can national rules, originally not dis­ 45. It is certainly tempting to maintain that criminatory or obstructive, become so the source of the difficulty is to be found, in because they cease to preserve freedom of this case, in the new Netherlands legislation. movement for workers, following amend­ The Government of the Kingdom of Bel­ ments to the corresponding rules of another gium has not failed to do so, and has gone so Member State? far as to state that the system thus adopted 'lacks consistency when it comes to be 21 applied (...) to migrant workers' and is incompatible with the principle of freedom of movement.

51. Where those systems are alike in nature, the way in which they fit together does not, 54. On this point it remains to consider the in principle, interfere with freedom of move­ problem, raised in the second question put ment, and the conformity of each with Com­ by the national court, of justifications munity law is determined separately. derived from Community law of a possible restriction of freedom of movement for workers.

52. Where however, as in this case, there is interference as a result of their different nature, it is the overall situation with respect to pension rights that must be considered, and if it discloses an obstacle to freedom of movement for migrant workers, it is the national rules affecting the exercise of that freedom that will have to be examined for 55. As the Netherlands Government cor­ their compatibility with Community law. 2 rectly points out, 2 in this matter the only possible areas of justification are public pol­ icy, public health and public safety. It will be observed that none of these three reasons has been relied on by the Government of the Kingdom of Belgium or the RVP. 53. In other words, if the pension, including a supplement for an inactive spouse, paid to a worker in Member State B is split into two 22 — Paragraph 20 of its observations.

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OPINION OF MR DARMON — CASE C-I65/91

56. I therefore propose that the Court rule as follows:

(1) Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the pro­ gressive implementation of the principle of equal treatment for men and women in matters of social security, read in conjunction with Article 7(1)(c) of that directive, is to be interpreted as meaning that it does not preclude a national provision from attaching different consequences to the grant of a pen­ sion for an inactive spouse according to whether that benefit is awarded in the form of an increase in the active spouse's pension or in the form of a pension awarded to the inactive spouse personally;